A court judgment is worth nothing if it can’t be enforced. No matter how many lawsuits a person wins, without an efficient enforcement service it won’t be carried out. And Ukraine is among the leaders in terms of unenforced court judgments. So, after judicial reform went underway, the Justice Ministry began reforming the enforcement service by enlisting private enforcers.
The first private enforcers got to work back in 2017. Presently, their number in the register has reached 122, whereas to cope with the workload, experts say, Ukraine needs as many as two thousand private enforcers.
But even this reform could not do without its share of scandals. Thus, in May of last year, one of the private enforcers – Andrii Avtorgov – was stripped of his license. He said back then that the state saw competitors in private enforcers and that this fact allegedly proved once again the existence of the so-called scheme of non-execution of court judgments. Later on, Avtorgov had the Justice Ministry’s decision reversed. But whether the state system has indeed “surrendered” to the private one is too soon to say.
To find out how international experts evaluate the progress in reform, LB.ua asked Damir Šite, a court enforcement officer at the Higher Commercial Court in Subotica, Serbia, and Lionel Decotte, a bailiff from Lyon, France. They help Ukraine implement reform under the EU project Pravo-Justice.
In recent years, court judgments in Ukraine became more enforceable: the percentage of executed judgments has increased from 5-6% to 18%. But it is still below the average European level. In EU states, this indicator reaches 50-70%. What is your take on the reform of enforcement service in Ukraine?
Damir Šite: Speaking about reforms in the countries of Eastern Europe, they never run easy. And that applies not just to Ukraine. In any country, not everything is smooth during the transitional period or a period of reforms.
Speaking about the enforcement service (in Ukraine — LB.ua), I am very happy that the new profession has been introduced. It needs support and further improvement, because private enforcers are very weak. The institute of private enforcers is only coming into being. But that’s the beginning of movement in the right direction.
Lionel Decotte: The process of transition from state to private enforcers has never been easy in any country, even in Asia and Africa. In France, we made certain mistakes, too. So, we are here to teach the Ukrainian service to avoid these mistakes, in particular, when it comes to application of law when enforcing collection, disciplinary charges, etc.
The passing of authority from a public body to a private person has never been easy. This process must be implemented with utmost care, in order to have a clear idea of what consequences it would entail for ordinary citizens, as well as for the judicial system in general and for the enforcement system.
Why, in your opinion, so few court judgments are carried out in Ukraine? Does the problem lie in the inefficiency of enforcement service or, after all, in the low level of legal consciousness?
Decotte: The difference is in motivation of a state and a private enforcer. A state enforcer receives a fixed salary, regardless of how many judgments they enforce, whereas the earnings of a private enforcer depend on the number of enforced judgments.
In France, for example, the state enforcement service has four units, one of which concerns itself with returning public loans only. However, its performance indicator is quite low.
Why am I often being engaged in the enforcement of judgments? Because they know that I can collect the debt. I have motivation for that. I start my workday at about 6 in the morning and finish at 9 – 9.30 in the evening, whereas the work hours of a state enforcer may sometimes be as short as from 9 am to 4 pm.
Šite: In Serbia, considered a post-communist state just like Ukraine, the situation was similar.
In the beginning of creating a private enforcement service, private bailiffs were authorized to collect outstanding utility bills. In six months to one year, people began paying the overdue bills.
The reason for not paying debt is not because people don’t have money to pay. They simply don’t want to pay, knowing that nobody would force them to repay debt.
At the same time, you, Mr. Šite, said in one of your interviews that Serbian law does not offer many opportunities to appeal a debt collection decision. Perhaps these options should be limited in Ukraine as well?
Šite: That’s right. If someone has the opportunity to circumvent a judgment, neither private nor state enforcer could do anything about it.
The main instrument for an enforcer is the enforcement order. We work with this document only when collecting debts. Until and unless a creditor gets that order, we cannot start the collection proceeding.
Decotte: I can’t understand why there should be the option to appeal many times the same case. Even in France, a country where protection of human rights and freedoms is taken very seriously, that’s impossible. There is even a clause in law obliging the appellant to compensate damages sustained by the court as a result of repeated appeals.
How long do you think the reform must take for the private enforcement service to enlist about two thousand enforcers? For that’s the number that experts believe is sufficient for Ukraine.
Decotte: The reform continues for two-three years already, and we have the impression that it went pretty fast in the beginning but then began to slow down. Today, it moves ahead very slowly.
In order for the reform to continue apace, the state [enforcement] service must help private enforcers get set.
When that thing with a private enforcer happened in May of last year (revocation of Andrii Avtorgov’s license – LB.ua), we couldn’t understand why it happened. If civil service does not want to establish an institute of private enforcers, then perhaps the reform should be curbed?
Šite: We have been working in Ukraine for a while. Ukraine is a very overregulated country. No matter what happens or what recommendations we give, there will always be some response, some regulation or legislative clause cited to show why that can’t be done.
In order for the reform to be fast and successful, it must be treated seriously. The state and the ministry (of justice – LB.ua) must be serious about it. And we do not point fingers at one particular person – the minister in this case. A ministry is not a minister. Civil servants come and go, but the system stays.
In our work, we are not trying to impose solutions but want to find them when communicating with our colleagues to find out what approach and what European practices are the best for application in Ukraine.
By Viktoria Matola
Source – LB.ua